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1997 Supreme(Guj) 126
Gujarat High Court
Judgename :J.N.Bhatt
GUJARAT MAZDOOR PANCHAYAT - Appellant
Versus
CHIEF LABOUR COMMISSIONER,delhi - Respondent
S.C.A. 5063 of 1996
Decided On : 03/03/1997
Headnote:(a) Contract Labour (Regulation & Abolition) Central Rules, 1971 - Rule 25(2)(v)(a) - Order of Respondent No. 1 dated 17.4.1996 refusing to grant equality of wages to workmen of contractor with that of workmen of principle employer - Validity - Impugned order of CLC (Chief Labour Commissioner) Respondent No. 1 unequivocally radiates an imprint that he has failed to appreciate & interpret the expression `same & similar and also the purport & design of power entrusted to him under provisions of Rule - Also the order reveals that reliance is mainly placed on the report of Regional Commissioner without full application of mind - Considering the facts Court ordered remand of the whole matter to CLC for reconsideration & re-examination in accordance with law after giving appropriate notice to all parties including contractor who is still not party to the proceedings.
The grounds stated in the impugned order dated 17.4.1996 by the CLC, unequivocally radiates, an imprint that the statutory authority failed to appreciate and interpret the expressions same and similar, and the purport and design of the provisions of Rule 25(2)(v)(a) of the Rules and reveals non-application of mind to the vital aspects and considering mainly the jet speed report of Regional Labour Commissioner, Ahmedabad, without making spot inquiry.
[Para 22]
In fact, that there was a denial required the discharge of statutory obligation and necessary exercise by the CLC in view of the plain persual of the proviso attached to Rule 25(2)(v)(a). He has to assume the role of an adjudicator only when there is a disagreement or denial of the rights. Such a denial cannot form basis for denying the legitimate claim. It must also be noted that the statutory authority must consider the mandate of the provisions of Arts. 14, 15, 16, 21, 38, 39 and also 46, which are aimed at removing social and economic inequalities and to achieve social and economic justice, by making equal opportunity available in reality. It appears from the plain perusal of the impugned order recorded by the CLC that, the aforesaid constitutional provisions are lost sight of. The authority has also failed to exercise statutory duty properly. The impugned order, therefore, in the opinion of this Court, is vitiated by such vices. When such an authority fails to perform required and requisite statutory duties in performance of the statutory provisions while dealing with such an important aspect without proper application of mind and basing mainly the decision on the report of a subordinate and not independently scrutinizing, analysing or considering material without proper inquiry, it becomes not only necessary but a duty to interfere with such an order even while exercising extraordinary, equitable, supervisory writ jurisdiction.
[Para 25]
Next it would lead to consideration of a question as to whether should this Court substitute the conclusion recorded by the authority in the light of the material and evidence on record or to remand the matter to the authority for reconsideration and re-examination of the issue in focus after giving an opportunity of hearing to the parties concerned in its letter and spirit. In the opinion of this Court, the latter course would be expedient and the petitioner has also prayed for remand, so that the statutory authority could reconsider and decide the whole matter afresh.
[Para 26]
(b) Words & Phrases - `Same and `similar - Expression in Rule 25(2) (v)(a) of Contract Labour (Regulation & Abolition) Central Rules, 1971 - Explained.
The case law has clarified and amplified the expressions same and similar. The Chief Labour Commissioner (CLC for short) has failed to appreciate this aspect. The expression same as per the dictionary means : (1) resembling in every way, (2) not different in relevant essentials, (3) conforming in every respect, and (4) having one nature or individuality; whereas the expression similar means : (1) having characteristics in common, (2) very much alike in substance or structure. The authority who is obliged to exercise statutory functions under Rule 25(2)(v)(a) must bear in mind that the above meanings clearly bring out the distinction between the two expression same and similar. An object or an operation can be said to be the same as another if it is absolutely identical to it or resembles it in every way. It may happen that there may be a few points of dissimilarity, but if there are such few points of dissimilarity existing between the two, that would not ipso facto mean that the same is not covered by the said rule. Though there may be dissimilarity between a nature of work of contract labour and the employer labour, yet, on the whole, the majority of symptoms or characteristics may be alike or common. In such a factual situation, it could be said that they are `similar.
[Para 15]
In reality, the word similar connotes the existence of two objects with some dissimilarities. If there was no dissimilarity, it would obviously be the same kind of object. But the preponderance of similarities as compared with the microscopic or insignificant dissimilarities entitle that object to be called of a similar nature. Although the expression same is generally, loosely and frequently employed in the sense of similar, the word similar would never mean same in its strict sense and, in fact, it cannot, since similarity implies existence of two or more objects for the purpose of comparison.
[Para 16]
( 1 ) WHAT is the real connotation of expressions "same" or "similar" work and ambit and extent of the statutory functions of the Chief Labour commissioner (Central) are the significant and substantial questions raised for the consideration and adjudication in this writ petition.
( 2 ) BY this petition, the petitioner-Union has challenged the order passed by respondent, Chief Labour Commissioner (Central), on 17-4-1996, recorded in exercise of the powers contained under Rule 25 (2) (v) (a) of Contract Labour (Regulation and Abolition) Central Rules, 1971, (Rules ).
( 3 ) PETITIONER is a registered Trade Union registered under the Trade Unions act, 1926. Petitioner has got substantial membership in the factory of respondent no. 2, Indian Oil Corporation Limited, at Baroda, (I. O. C. ). Petitioner-Union filed special Civil Application No. 566 of 1996 on 18-1-1996, wherein, this Court had passed an interim order directing the Government to take decision with regard to pending Failure Reports and also the complaint under Rule 25, on 26-2-1996. There was a direction in terms of prayer clause 10 (F) of that petition, whereby, during the pendency and final disposal of that petition, respondent Nos. 1 and 2 were directed to take decision with regard to two pending Failure Reports and also complaint under Rule 25 and to submit it before the Court. The petition was ordered to stand over to 22-4-1996.
( 4 ) THE petitioners contention in this petition is that the aforesaid direction seems to have compelled respondent No. 1 to depute an officer from the office of Regional Labour Commissioner (Central) on 9-4-1996 and obtain his report dated 11-4-1996. Respondent No. 1 has passed his final order on 17-4-1996. It is, inter alia, contended by the petitioner that the impugned order is vitiated by number of legal errors including non-application of mind and undue haste and hurry. The petitioner-Union has also contended that the complaint dated 1-3-1994 was given and it sought to cover the following areas and places of work in the premises of Indian Oil Corporation Ltd. :- (1) Canteen (2) Garden (3) Security (4) House Keepingrespondent No. 1 took adverse decision on 17-4-1996 and has refused to grant the equality of wages. The impugned order is challenged on various grounds.
( 5 ) THE Regional Labour Commissioner, one Mr. P. C. Bhargav, has filed affidavit-in-reply on behalf of respondent No. 1-Chief Labour Commissioner, whereas one Mr. A. C. Shekhar has filed three affidavits on behalf of respondent No. 2, at different stages.
( 6 ) AFTER having examined dispassionately the material emerging from the record and having heard the learned Advocates appearing for the parties, this Court is satisfied that the impugned order of respondent No. 1 is not legal and justified.
( 7 ) IT seems from the record that the quasi-judicial work entrusted to respondent No. 1 pursuant to Rule 25 (2) (v) (a) is not properly and legally exercised. The impugned order of respondent No. 1 is tainted with various vices and suffers from non-application of mind. Rule 25 (2) (v) (a) reads as under :-"25. Forms and terms and conditions of licence :- xxx xxx xxx xxx (2) Every licence granted under sub-rule (1) or renewed under Rule 29 shall be subject to the following conditions, namely -. . . . . . . . . . . . . . . . . . . . . . . . (v) (a) in cases where the workmen employed by the contractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the principal employer of the establishment or the same or similar kind of work : provided that in the case of any disagreement with regard to the type of work the same shall be decided by the Chief Labour Commissioner (Central)". It could very well be seen from the aforesaid provi
